Lack of flexibility as time is running out to solve the Irish backstop dilemma

Share

The October European Council summit saw horns clash and dialogue disintegrate as the future fate of Ireland and its ever-contentious border with the United Kingdom dominated discussions. For 20 years, peace has largely prevailed on both sides of the Irish Border. An astonishing feat, thanks to the Good Friday Agreement which helped put to rest the decades of sectarian violence between Unionists and Republicans known as ‘The Troubles’.

The frictionless free movement via an open border mandated by the European Union has been a major factor enabling Ireland’s peace process thus far. Indeed, the Good Friday Agreement’s reference to the Republic of Ireland and the United Kingdom as “partners in the European Union” cannot be understated. Britain’s departure from the European Union therefore threatens to jeopardise the Agreement’s historic achievement by reconstructing a hard border - a scenario invoking deep fear and apprehension to those whose livelihood, prosperity and peace are all at stake.

From the onset of negotiations, the avoidance of a hard border between the Republic of Ireland and Northern Ireland has been recognised by all parties as a very high, if not highest, priority point. Unfortunately, it is also the most problematic. Despite 27 months passing since Britain’s referendum, an answer to the Irish border question still remains to be seen.

“A blood red line”

All parties recognise a hard border as undesirable, and all have agreed on the necessity of a ‘backstop’. The intricacies of what the backstop will entail however, remain a significant focal point of disagreement.

The function of a backstop is to provide a safety net if no solution via an EU-UK trade agreement is found by the end of the 21-month transition period (where the UK remains in the single market and customs union). This ensures that a hard border (meaning border checks and the necessary reconstructed infrastructure to enforce such) will not surface. The backstop is therefore an imperative guarantor of the peace afforded by the Good Friday Agreement.

The European Union’s backstop position aims to avoid a hard border after the transition period by keeping Northern Ireland within the customs union and single market, whilst the rest of Britain remains outside of it. This proposition certainly alleviates frontier checks at the Irish border, hence at least harmony on an architectural level. It also contains some allure when one considers that Northern Ireland as a whole voted to remain in the European Union during the referendum.

However, this would not remove a hard border, but instead would relocate it to the Irish sea - that is, between Northern Ireland and Britain. This is problematic for numerous reasons. For the UK government, the idea has proven wholly unacceptable as it seriously jeopardises the country’s constitutional integrity. By ceding Northern Ireland’s trade and economic policy competences to the EU, the Republic of Ireland would essentially have a say over rules governing Northern Ireland which Northern Ireland do not have a say upon. This scenario is very precarious, particularly for Unionists.

In fact, the UK’s government in its current form is propped up in the coalition by the Northern Irish Democratic Unionist Party (DUP). This is important, as the British government cannot pass any solutions unless backed by the DUP. The party naturally oppose vehemently any proposition that undermines Northern Ireland’s position within the United Kingdom, claiming it would cross a “blood red” line.

After all, the dilemma is about much more than merely customs and economics. Any proposals that further align Northern Ireland with the Republic of Ireland antagonises the Unionists who identify as British, and any proposals that further distance Northern Ireland from the Republic of Ireland antagonise the Republicans who identify as Irish.

UK-wide backstop as an alternative

The United Kingdom’s interpretation of a backstop is therefore somewhat different. The official position aims to alleviate the hard border by keeping both Northern Ireland and the rest of Britain within the customs union (but not the single market) on a temporary basis (with the temporal element stressed). Alternatively, the UK has proposed that if a trade deal is not signed by the end of the initial transition period, then the transition period should be extended for a limited period. Both options, according to the UK, must end before June 2022. With negotiations in their crunch moments, there remain doubts within the UK government about the UK’s unilateral right to leave the backstop arrangement, a key demand of Brexiteers that may not be entirely satisfied by the deal.

These propositions also avoid frontier checks, whilst at the same time deterring upheaval (albeit temporarily) to the Unionist/Nationalist conflict which the EU’s proposition could trigger. Nonetheless, these too are not unproblematic from the EU’s viewpoint.

The most prominent critique is the temporal element, as an inherent risk of returning to a hard border is run if a solution is not found in time. A second key issue concerns a political choice by EU leaders not to allow “à la carte access to the single market”. Britain’s backstop position would see the UK continuing to benefit from much of the EU’s internal market whilst simultaneously rejecting migration via free movement of persons. The indivisibility of the four freedoms is a crucial threshold for the Union in their negotiations.

It had been hoped by many that the Summit in Brussels would see European leaders finally come to an agreement on the question. Instead, frustrations deepened whilst those conscious of the fragility at hand remembered sorrowfully the bitter violence that haunts their memories.

Ireland’s Prime Minister Leo Varadkar allegedly presented to EU leaders at the Summit a newspaper dated 1962 showing a bomb explosion that killed dozens at a customs checkpoint. Indeed, violent attacks at customs checkpoints had been commonplace during The Troubles. They had symbolised an intolerable divide to Republican dissidents. Varadkar’s message on how far we have come and how much we have to lose was clear. In fact, wary of the possibility of a resurrected hard border, the chairman for the Police Federation for Northern Ireland recently stated that any police stationed at customs points would again become “sitting ducks for the terrorists”.

Flexibility on both sides is required

The UK’s decision to leave the EU no doubt poses massive security implications for Ireland. Whilst it is positive that all negotiating parties have the matter as a top priority, the whole discourse is futile unless a deal is swiftly reached. If no deal is reached, a hard border will by necessity follow. As German Chancellor Angela Merkel admitted whilst implying a need for greater flexibility in negotiations, “we all need to find an answer on Ireland and Northern Ireland [...] If you don’t have an agreement, then you don’t have an answer either.”

Ultimately, the EU’s position is arguably too insensitive to the political reality at hand. It could enhance an already unstable divide between unionists and republicans. This, it is feared, sets the scene for a return to tension and violence that has only recently been controlled.

The UK’s position, on the other hand, has consistently been one which undermines some of the Union’s fundamental principals. By ‘cherry picking’ elements of Union membership (i.e. access to the customs union minus the single market, or access to the single market minus the free movement of persons) the UK could have a hand in jeopardising a core raison d’etre of the Union and set the scene for further disintegration.

Therefore it is vital both sides remain open to compromise, ensure dialogue is ongoing, and keep receptive to new ideas. With such little time remaining to find a solution, it is important for the EU and UK to reconsider their reservations. The stability of the Irish border must not be taken for granted. For both parties, peace-minded pragmatism rather than strict adherence to economic and political principles should ultimately prevail. After all, stubborn intransigence on either side will only make a hard border more probable.

About the author

Graduated with a Bachelor of Laws (LLB) from the European Law School at the University of Maastricht, which included an exchange year with a specialisation in International Relations at Tallinn University of Technology. Currently a student of European & Comparative Law (LLM) at the University of Malta.

Your comments

pre-moderation

Warning, your message will only be displayed after it has been checked and approved.

Who are you?

Name

Email (not published)

To show your avatar with your message, register it first on gravatar.com (free et painless) and don’t forget to indicate your Email addresse here.